Category Archives: Mount Vernon Criminal Defense Attorney

Whatcom County Sheriff’s Office to Host Gun Buyback Program

Bellingham Defense Attorney, Firearm, Gun Buyback Program, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

gun-buyback

Photo Courtesy of Associated Press – Mel Evans

The Whatcom County Sheriff’s Office (WCSO) recently announced it was awarded $125,000 from the Washington State Attorney General’s Office to support a gun buy-back program and firearm storage in Whatcom County.

WHAT IS A GUN BUYBACK PROGRAM?

Gun buyback programs compensate individuals who turn over firearms to a public agency or private organization. In the United States, nearly all buyback programs are implemented at the county or city level, and participation is always voluntary. The primary goal of gun buyback programs is to prevent firearm violence by reducing the stock of firearms in a community.

Gun buybacks can also serve as venues for raising awareness of the risks associated with firearms, educating participants about safer firearm storage, and connecting violence prevention organizations, all of which could potentially lead to reductions in firearm crimes, injuries, or deaths.

The WCSO is one of 12 law enforcement agencies statewide to receive funding as part of the Attorney General’s Office efforts to promote firearm safety, combat gun violence, and support victims of gun violence. Some of the funding will be used to purchase gift cards in exchange for surrendered firearms, to reduce the number of guns in circulation, and to promote community safety.

“As the Sheriff of Whatcom County, I want to emphasize that combating gun violence is extremely important to me, not only as a law enforcement officer but also on a deeply personal level . . . Having tragically lost several family members to gun violence, I understand the devastating impact it has on families, communities, and our entire society.” ~WCSO Sheriff Donnell “Tank” Tanskley.

The Whatcom County Sheriff’s Office will provide additional details about the gun buy-back program, including the date, time, location, and eligibility requirements this coming spring.

HOW SUCCESSFUL ARE GUN BUYBACK PROGRAMS?

Gun buyback programs remain popular despite limited evidence of their effectiveness as a violence prevention tool. A combination of consistently high public support, low cost, and local control contribute to the political and practical feasibility of implementing buyback programs. In contrast, many other violence prevention efforts face intractable political debates, are cost prohibitive, or are implemented at the state or federal level. Buybacks might also be appealing because the results—the guns that are surrendered—provide public officials with the opportunity to point to immediate and visible “success.”

My opinion? The empirical evidence regarding the effectiveness of buyback programs is limited and mixed at best. Regardless, buyback programs continue to garner considerable public support and continue to be implemented in many communities. They’re a step in the right direction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

New Law To Punish Those Who Injure or Kill Vulnerable Road Users

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Uncategorized, Vulnerable Road User, Whatcom County Criminal Defense, , , ,

New state law to protect vulnerable road users takes effect January 1

The Washington traffic Safety Commission reported that on January 1, 2025, Washington State will implement a new law intended to enhance safety for “Vulnerable Road Users” such as pedestrians, cyclists, and individuals using personal mobility devices.

The law aims to reduce injuries and fatalities from crashes involving non-motorized road users by increasing penalties for negligent drivers. A negligent driver is generally considered to be a person who fails to exercise ordinary care, which then endangers another person.

In the past decade traffic fatalities of vulnerable road users have increased dramatically. Since 2014 annual deaths of vulnerable people on our roads more than doubled. These aren’t just numbers; they’re people in our communities – neighbors, friends, and family.

WHAT IS A VULNERABLE ROAD USER?

Vulnerable road users are people on our roads and sidewalks that don’t have the protection of a vehicle’s cage to keep them safe. This includes people walking, biking, riding scooters and skateboards, using mobility aids, riding motorcycles, traveling by horseback, and even driving a tractor without a protective shell.

NEGLIGENT DRIVING

By statute, a person drives negligently when they fail to exercise ordinary care. To determine negligence, the law compares the action of a driver to a reasonably careful person. Did the driver do something a reasonably careful person wouldn’t do, or did the driver fail to do something a reasonably careful person would do? And did that driver endanger or likely endanger any person or property?

WHAT ARE THE PENALTIES OF VIOLATING THIS NEW LAW?

Under the new law, penalties for a negligent driver who causes the death of a vulnerable road user include:

  • A fine of $5,000
  • Up to 364 days in jail
  • Suspension of driving privileges for 90 days

Penalties for a negligent driver who seriously injures a vulnerable road user may include:

  • A fine of $5,000
  • Suspension of driving privileges for 90 days
  • Traffic school
  • Up to 100 hours of community service

“This law is one part of Washington’s ongoing efforts to make our roads safer for everyone. By focusing on protecting our most vulnerable road users, we’re sending a clear message that when you’re the biggest and the fastest, you need to be the safest, too. Everyone has a right to safe passage on our roads, whether they’re in a car, on a bike, or on foot.” ~Shelly Baldwin, Director of the Washington Traffic Safety Commission (WTSC)

The WTSC will run an educational campaign through January to inform drivers and vulnerable road users about the new law and promote safe road-sharing practices.

Please contact my office if you, a friend or family member are charged with Negligent Driving, Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State Courts Lack Authority to Euthanize Dangerous Dogs

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

migrated image

In State v. Richards, the WA Supreme Court held that state district courts have no authority to force citizens to have their pets euthanized.

FACTUAL BACKGROUND

Ms. Richards’ dog, Thor, serves as an emotional support animal to Richards’s daughter, who suffers from health complications. In June 2018, Thor was declared a “potentially dangerous dog” after biting Richards’s neighbor’s dog. Thor bit the same dog again in April 2019 and was declared a “Dangerous Dog” under Wahkiakum County Code. Both the state and county codes require certain actions of the owner of a dangerous dog, such as registering the dog and having the dog restrained at all times, on a leash or in a fenced yard.

In September 2020, Richards left Thor on her porch while she ran to the pharmacy to get medication for her daughter. Thor was not enclosed and was not leashed, but he did not leave Richards’s property. Police were called to check on a loose dangerous dog. Thor barked at the officer who attempted to secure the animal but did not bite. The first officer called for backup, and they monitored Thor until Richards returned home and secured the dog. The officers informed Richards that the incident would be forwarded to the prosecutor’s office. Wahkiakum County (County) charged Richards with one count of having a dangerous dog at large.

The district court convicted Richards of a gross misdemeanor after a stipulated bench trial. At sentencing, the County recommended that Richards receive the maximum sentence and fine, but that the sentence be suspended once Thor was euthanized by the Humane Society. The parties have agreed that surrendering the dog would result in Thor’s death.

The judge also ordered that if Richards did not surrender the dog by the following day, she would remain in custody until she provided proof that the dog had been surrendered. Richards appealed to the superior court, which affirmed her conviction and sentence. Richards then appealed the conviction and sentence to the Court of Appeals, Division Two.

The Court of Appeals affirmed Richards’s gross misdemeanor conviction based on the county ordinance. However, the court remanded for resentencing, determining that the district court had gone beyond its authority. Specifically, the court found that the prerequisites for destruction of a dog provided in both the state law and county ordinance were not met, and thus Thor was not subject to destruction. The WA Supreme Court granted review and took the issue up on appeal.

LEGAL ISSUE

Did the district court act within its sentencing authority when it conditioned the suspension of Richards’s misdemeanor sentence on turning her dog over to the county animal control authority?

WA SUPREME COURT’S ANALYSIS & CONCLUSIONS

Justice Charles Johnson wrote the majority opinion in this case. The Court began by saying a dog is nonfungible personal property, and the owner has a valid legal ownership interest unless some procedure disrupts that interest. Although the parties’ briefing addresses the sentence using terms like “surrender,” to forcibly deprive an owner of specific property generally constitutes a forfeiture.

Hence, reasoned Justice Johnson, Ms. Richards sentence requiring forfeiture of Thor constitutes criminal forfeiture. That is because the sentence deprived Richards of specific, nonfungible personal property. Consequently, criminal forfeiture such as this requires statutory authority. Justice Johnson described why statutory authority in this case was lacking:

“The county ordinance at issue has no plain language authorizing criminal forfeiture.  Also, the county ordinance does address civil or administrative forfeiture of a dangerous dog. Under the ordinance, civil forfeiture is a separate procedure from criminal forfeiture imposed on a defendant during sentencing, so this county ordinance does not apply to the criminal forfeiture order that occurred here.

Even assuming the civil forfeiture ordinance applies in this context, the County did not meet the required prerequisites provided . . . In short, we agree with the Court of Appeals that a district court cannot impose forfeiture absent statutory authorization, and the State is unable to point to such authorization here.” ~Justice Charles Johnson, WA Supreme Court

With that, the WA Supreme held that while a district court may order a defendant to take certain actions, and may even be creative in its orders, it may not go beyond the scope of the statutory authority granted to it.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Substance Use: Health Issue Or Crime?

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

open pill bottle

New polling data from the Legal Action Center shows that more Americans than ever think substance use should be treated as a health issue, rather than a criminal justice issue. But many state and federal laws continue to criminalize substance use – more than half of states still treat drug possession as a felony.

THE POLL DATA

The Legal Action Center poll revealed that in 2024, 75% of Americans thought that substance use disorders (SUD) “should be treated more as a health problem than a criminal problem”, compared with 67% in 2019. The poll also showed rising support for increased spending and access for SUD treatment, including in jails and prisons.

ARE FEDERAL, STATE AND LOCAL DRUG POLICIES WORKING?

The Biden administration dramatically expanded access to naloxone, an overdose-reversal medication, including by making it available over the counter. Some jurisdictions, including Chicago, have made naloxone and fentanyl test strips free to the public. And several states decriminalized drug-checking equipment, including fentanyl test strips in 2023, but some still forbid drug checking.

Some State and local drug policies intended to increase SUD treatment access have been around for a long time, but local and federal governments often fail to provide sufficient funding and attention to make the most of those policies. Even outside of SUD treatment, there is a shortage of behavioral health workers in the US.

HOW DO DRUG CRIMES GET INVESTIGATED AND PROSECUTED?

Drug crimes and charges generally come out of a warrant, a search, a seizure, an informant, a plain view or a tip.  This means that the “how and why” a was searching and seizing something, or, why and how they were engaging an informant or tipster, will raise constitutional issues.  State and Federal Agents must act within Washington State and Federal law.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Numerous affirmative defenses exist, including Unwitting Possession and Entrapment. In general, criminal drug cases can be guided towards a favorable resolution. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v Blake Does Not Open The Door To Untimely Challenges On Voluntary Guilty Pleas

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

florida courtroom motion to withdraw plea

In State v. Olsen, the WA Supreme Court held that a defendant’s knowing and validly entered guilty plea to a 2003 drug possession charge did not become unknowing and involuntary simply because the State v. Blake decision in 2021 declared Washington State’s drug possession statute unconstitutional.

FACTUAL BACKGROUND

In 2003, Olsen pled guilty to Forgery and Unlawful Possession of Controlled Substance in two separate matters at the same time. In 2005, Olsen pled guilty to unlawful possession of firearm second degree and unlawful possession of controlled substance from the same incident. He completed his sentences on both matters.

In 2021, Olsen filed CrR 7.8 motions to withdraw his guilty pleas as being involuntary pleas to nonexistent crimes and that the pleas were part of indivisible agreements, pursuant to State v. Blake. The superior court denied the motions and only vacated the drug possession convictions.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held that while Blake invalidated Olsen’s simple drug possession convictions, it did not open the door to untimely challenges to the voluntariness of guilty pleas.

“A motion to withdraw a plea after judgment has been entered is a collateral attack,” said the Court.  “Criminal defendants seeking to collaterally attack their judgment and sentence must do so within one year of the judgment and sentence becoming final.”

The Court acknowledged that RCW 10.73.100(7) provides an exception to the one-year time bar when there has been a significant, retroactively applicable change in the law that is material to the defendant’s conviction or sentence. However, the defendant must show the law changed in a way that entitles him to relief, such as by changing the process or result of their case. Here, Blake is not material to Olsen’s due process claim challenging the voluntariness of his drug possession pleas.

Olsen’s guilty pleas, knowingly and validly entered, did not become unknowing and involuntary simply because Blake declared the drug possession statute unconstitutional. The validity of the pleas turns on whether Olsen was inadequately informed of the law and the consequences at the time he pleaded. State v. Lamb, 175 Wn.2d 121, 129, 285 P.3d 27 (2012). Blake does not provide new legal grounds for determining whether he voluntarily and knowingly pleaded guilty to drug possession, a valid crime in 2003 and 2005. Olsen cannot use Blake to circumvent the time bar under RCW 10.73.100(6) and belatedly challenge his guilty pleas.

With that, the WA Supreme Court affirmed the Superior Court’s rulings denial of Olsen’s motions to withdraw guilty pleas and upheld Olsen’s drug conviction.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Trump To Expand the Federal Death Penalty

Bellingham Defense Attorney, Death Penalty, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Trump wants to expand the federal death penalty, setting up legal challenges in second term

According to NBC News, President Trump will re-start the execution of federal inmates on Death Row. In doing so, he’ll undo a moratorium on executions entered under the outgoing Biden-Harris administration.

“These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country . . . We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts.” ~President Donal Trump

Additionally, the incoming president also says he wants to expand capital punishment for other crimes. He’s suggested executions for child rapists, human traffickers and illegal immigrants who kill Americans or police officers. These measures would require support from Congress and the Supreme Court.

WHAT IS THE LIKELIHOOD OF MORE EXECUTIONS?

Probabaly more favorable than his prior efforts. In 2008, the Supreme Court declared the death penalty for child rapists unconstitutional when the child survives, the American Bar Journal reported Monday. These day, however, proponents are hopeful for a reversal. Trump is now in the White House. There’s also a Republican majority in the Senate and conservatives hold a 6-3 advantage in the current Supreme Court.

The death penalty for drug and human trafficking would be unprecedented in the western world. Also, no president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.

There are currently 40 federal inmates on death row, according to the Death Penalty Information Center. The list includes surviving Boston Marathon bomber Dzhokhar Tsarnaev and Dylann Roof, who massacred nine parishioners in a South Carolina church.

Justice Department records show the federal government has executed 16 people since 2001. Thirteen of those executions came during Trump’s first term in office.

The individual states executed 1,542 condemned inmates between 1977 and 2022, according to federal data. Texas led the way with 587 executions, more than the next two states combined – Oklahoma with 119 and Virginia with 113. In almost that same time period – between 1973 and 2023 – 192 death row inmates were exonerated and set free, according to the ACLU. The individual states have their own system for capital punishment – or lack thereof – and would not be as impacted by Trump administration policy.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can Police Use Deception To Extract Confessions?

Bellingham Defense Attorney, Interrogation, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Apparently, the answer is “Yes.”

There’s an excellent article in NPR from journalist Meg Anderson saying that advocates are pushing for laws that effectively ban police from lying to suspects during interrogations. In every state, police officers are allowed to lie to adults during an interrogation. The hope, in many cases, is that they’ll get a person to confess to committing a crime.

BACKGROUND

When it comes to laws enforced by the justice system, we have an expectation of honesty, integrity, and transparency. However, police officers are legally empowered to use deception and other types of lies during interrogations.

This ability originates from the 1969 Supreme Court case Frazier v. Cupp, which ruled specific police lies were permissible. The case involved officers falsely telling the suspect that his associate had already confessed, leading the suspect to also confess. The Court said this lie alone was not enough to make the confession involuntary or violate his Constitutional rights.

Since then, no laws have established clear boundaries around what interrogation lies are appropriate versus unethical. Generally, police are legally empowered to:

  • Verbally make false statements about evidence
  • Momentarily lie about offense seriousness or punishment
  • Make unfulfillable promises of leniency for waiving rights
  • Lie about what others told them or what evidence reveals
  • Threaten charges against or harsher punishment for family members

Defense lawyers and civil rights advocates have raised increasing concerns about the prevalence of deception. The argument is that lying puts innocent people at risk of false confessions. However, prominent judges have argued that only coerced confessions through abuse or misconduct can be thrown out – not those involving lies alone. The ethics remain hotly debated.

“Police are trained around the country in all 50 states to use deception during interrogation, to lie both about the evidence against a suspect and to lie about the consequences of confessing in order to make it seem not so bad if you just say that you did these things.” ~Attorney Laura Niridier

Unfortunately, deceptive tactics can also draw false confessions. According to the Innocence Project, nearly a third of DNA exonerations from 1989 to 2020 involved a false confession. Legal experts say the deception bans passed in recent years fail to protect other vulnerable groups: young adults, people with intellectual disabilities, even just people who are naturally compliant.

A GROWING NUMBER OF STATES ARE PASSING LAWS THAT STOP DECEPTIVE TACTICS AT  POLICE INTERROGATIONS

Ten states have passed laws in recent years effectively banning police from lying to juveniles during interrogations, starting with Illinois in 2021. And some legal advocates are pushing for a deception ban that would apply to everyone, not just kids. Deception is a powerful law enforcement tool in eliciting confessions, says wrongful convictions attorney Laura Nirider.

WASHINGTON PROPOSED LEGISLATION TO STOP DECEPTIVE INTERROGATIONS

In Washington state, Democratic lawmakers want to set a higher bar: A bill that would make incriminating statements made in police custody – by adults or children – largely inadmissible in court if obtained using deception. State Rep. Strom Peterson has introduced the bill twice. However, the legislation hasn’t gone anywhere.

The Washington Association of Sheriffs and Police Chiefs said in a statement that it opposes such a measure, because banning deception would take away a tactic that yields “many more true confessions” than false ones.

“Criminals often conduct elaborate stories to conceal their crimes . . . Sometimes the use of deception is required to locate the truth both to convict and to exonerate people. Such deceptions include telling a person that abuse was discovered during a routine medical exam rather than reported by a family member.” ~James McMahan, Director of the Washington Association of Sheriffs and Police Chiefs

GIVING POLICE NEW TOOLS

Those against deception bans see them as an attack on police, says Mark Fallon, a consultant on interrogation practices and former federal agent. In fact, he says, it’s the opposite. There’s another way for police to question people, Fallon says, that relies on building rapport and asking open-ended questions, and where the primary goal is information, rather than a confession.

That technique is used in other countries, including much of Europe. In England, France, Germany, Australia, Japan and elsewhere, for instance, the police are generally not allowed to deceive suspects.

My opinion? Honestly, I’ve never seen a circumstance where a police officer intentionally lied or deceived a suspect during an interrogation in order to illicit a confession. I simply don’t see this technique happening in the police agencies I work with.

Nevertheless, it appears other law enforcement agencies outside of Whatcom and Skagit County use this questionable technique. Clearly, the problem with deceptive interrogation techniques is that it creates more deception. If discovered, the defendant’s confession is clearly corrupted by the lies used to bring it. Studies show that telling little fibs leads down a slippery slope to bigger lies. Our brains adapt to escalating dishonesty, which makes deceit easier. In those cases, a Motion to Suppress the corrupted/false interrogation may be appropriate.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can Artificial Intelligence Lead to Wrongful Convictions?

Artificial Intelligence, Bellingham Defense Attorney, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: (Kathleen Crosby/Innocence Project)

Photo Courtesy of Kathleen Crosby & The Innocence Project

The Innocence Project published a very insightful article describing how AI-based surveillance systems lack independent verification, empirical testing, and error rate data. These shortcomings lead to wrongful arrests and potentially wrongful convictions. More worrisome, there’s a disturbing readiness among some system actors, especially prosecutors, to accept AI-based evidence at face value. As a result, the eager acceptance of AI-based evidence mirrors the same flawed embrace of misapplied forensic science, which has contributed to numerous wrongful convictions.

BACKGROUND

The use of unreliable forensic science has been identified as a contributing factor in nearly 30% of all 3,500+ exonerations nationwide. Take bite mark analysis, for example. The practice was widely used in criminal trials in the 1970s and 1980s but is poorly validated, does not adhere to scientific standards, lacks established standards for analysis and known error rates, and relies on presumptive tests. It has since been discredited as unreliable and inadmissible in criminal trials due to its shortcomings. Still, there have been at least 24 known wrongful convictions based on this unvalidated science in the modern era.

ADMITTING SCIENCE-BASED EVIDENCE 

The 1923 Frye v. United States decision introduced the “general acceptance” standard for admissibility at trial. In short, the scientific technique must have expert recognition, reliability, and relevance in the scientific community to be “generally accepted” as evidence in court. Some state courts still apply this standard today. Also, the Daubert v. Merrell Dow Pharmaceuticals Inc. decision shifted the focus to evaluating the relevance and reliability of expert testimony to determine whether it is admissible in court.

In applying the Daubert standard, a court considers five factors to determine whether the expert’s methodology is valid:

  • Whether the technique or theory in question can be, and has been, tested;
  • Whether it has been subjected to publication and peer review;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

Under Daubert and Frye, much AI technology, as currently deployed, doesn’t meet the standard for admissibility. ShotSpotter, for example, is known to alert for non-gunfire sounds and often sends police to locations where they find no evidence that gunfire even occurred. It can also “significantly” mislocate incidents by as much as one mile. It, therefore, should not be admissible in court.

Similarly,  facial recognition technology’s susceptibility to subjective human decisions raises serious concerns about the technology’s admissibility in court. Such decisions, which empirical testing doesn’t account for, can compromise the technology’s accuracy and reliability. Research has already shown, for instance, that many facial recognition algorithms are less accurate for women and people of color, because they were developed using photo databases that disproportionately include white men.

My opinion? If we are to prevent a repeat of the injustices we’ve seen in the past from the use of flawed and untested forensic science, we must tighten up the system. Too many investigative and surveillance technologies remain unregulated in the United States.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Federal Judge Upholds Washington’s Ban on Selling and Distributing At-Home Sexual Assault Kits

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Concerns over "Me Too" kits

In a press release, the WA Attorney General Office (AGO) reported a federal judge upheld Washington’s ban on selling and distributing at-home sexual assault kits under House Bill 1564. The federal court’s ruling dismisses a lawsuit brought by Leda Health, a Pennsylvania company that sells the self-administered kits for profit.

Washington State’s Law Banning “At-Home” Sexual Assault Kits.

House Bill 1564 went into effect in July 2023, after garnering overwhelming, bipartisan support from the state Legislature. The law prohibits the sale and distribution of sexual assault kits that are marketed or presented to collect “evidence” at-home or over-the-counter by anyone other than law enforcement or a health care provider.

Self-administered kits have multiple important differences from an exam conducted by a Sexual Assault Nurse Examiner. These professionals receive specialized training including:

  • Providing comprehensive care to sexual assault survivors, including prevention treatment for STIs and follow-up care,
  • Collecting evidence in a way that avoids cross-contamination,
  • Storing evidence to avoid contamination or spoliation, and
  • Maintaining a chain of custody for the evidence.

Leda Health’s “MeToo Kits.”

Formerly known as MeToo Kits, Leda Health says the company’s kits offer survivors an alternative if they feel unsafe or uncomfortable going to the police or a hospital. In its lawsuit, Leda argued that the state’s 2023 ban targets sexual assault survivors and violates First Amendment rights related to free speech and advertising.

However, U.S. District Court Chief Judge David G. Estudillo disagreed, ruling that the statute is “an economic regulation of the sale of a particular product,” not a regulation of speech.

“This is a legal victory for sexual assault survivors . . . By an overwhelming bipartisan vote, the Legislature adopted this state law that prevents companies from exploiting sexual assault survivors. Survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost.” ~WA Attorney General Bob Ferguson

Washington also sent a cease-and-desist order to Leda Health in 2022 that said the company’s advertising included “patently false” claims, including marketing that may lead survivors to believe the company’s kits are comparable to free state kits. Leda Health ended sales in Washington in response and hasn’t sold in the state since.

Why Are At-Home Sexual Assault Kits Are Inadmissible in Court?

Self-administered kits face numerous barriers to admission as evidence. These barriers include  concerns about cross-contamination, spoliation, validity, and chain of custody.

Importantly, self-administered kits are not eligible for submission to the Crime Lab. Therefore, any DNA collected would not be entered into CODIS, a national DNA profile database that national, state and local law enforcement use to identify repeat offenders, build leads, and track evidence.

In its press release, the AGO’s office said survivors have the right to have an advocate or personal representative with them during an exam. Survivors do not have to make a decision about talking to law enforcement or reporting a crime in order to obtain a SANE exam. State law requires unreported sexual assault kits be transported to local law enforcement and stored for 20 years from the date of collection.

“Timely forensic examinations by a trained provider represent the best chance to preserve evidence if a survivor chooses to move forward with reporting the assault and criminal investigation.” ~Press Release, AGO’s Office.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Courts Release New Juror Orientation Video Explaining Unconscious Bias

Bellingham Defense Attorney, Jury Selection, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

2023 - Justice for All: Orientation to Jury Service

The first new Juror Orientation Video for Washington courts since 2005 has been produced. It is now available for courts to utilize in helping prospective jurors understand the steps involved in jury service and the critical importance of this civic duty.

The 21-minute video features updated language, added definitions, professionally produced graphics and jury scenes. A narrator explains jury selection steps, describes courtroom procedures and the reasons for them. Most important, he discusses examples of how unconscious bias works.

“The right to a jury trial is a fundamental constitutional right, essential to our system of justice and our democracy . . . This new video will help prospective jurors understand the importance of jury service as a civic responsibility, and show them how our system of justice works.” ~King County Superior Court Judge Michael Scott

Discussions had begun years ago that Washington’s juror orientation video needed an update. Unfortunately, the COVID pandemic delayed development.

Development of content and script were overseen by WPIC’s Juror Orientation Video Subcommittee, chaired by attorney Keith Kessler, a longtime member of WPIC. “We deeply appreciate Mr. Kessler’s leadership and dedication to the completion of this video,” wrote the staff of the WPIC in announcing the video, which was produced by digital media agency Sandbox, Inc.

Discussions had begun years ago that Washington’s juror orientation video needed an update. Unfortunately, the COVID pandemic delayed development.

“We started getting gentle and sometimes not-so-gentle nudges from judges, court staff, and attorneys who all had the same message: The video needs an update . . . These were professionals on the front lines who saw, day in and day out, how important it is for jurors to be given clear, modern direction. They were advocating for jurors, wanting them to have the best tools possible to fulfill their civic duty.” ~Attorney Keith Kessler, Chair of the Juror Orientation Video Subcommittee

Updating the video involved a thoughtful, collaborative process with a subcommittee of experts on trial practice. It required numerous meetings, drafts and rewrites to create a script reflecting the best practices of modern courtrooms.

The new video is “clear and designed to help jurors understand their role in a way that’s both informative and empowering,” Kessler said. “My hope is that this video will help jurors feel confident as they step into the courtroom, knowing they have the knowledge they need to do their job well.”

The video can be found on Washington Courts’ YouTube page, as well as linked on Washington Courts’ Jury Duty page.

My opinion? Juror bias videos like these are excellent toward educating jurors of their hidden biases. Another helpful tactic used by experienced defense attorneys is a jury questionnaire. Often, jurors complete these questionnaires when they arrive at court for the trial. These questionnaires examine a juror’s ability to fairly judge Sex Offenses, DUI and Domestic Violence cases. Copies of the completed questionnaires are distributed to the parties and the judge. Ideally, the completed jury questionnaires are made available to the parties far enough in advance of the voir dire questioning to allow for the proper evaluation of the information they contain (e.g., a several hour or an overnight recess).

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.